Gott-Dinsmore and Dinsmore ( 2024 )

No. 20 January 10, 2024 169
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
STEFANIE GOTT-DINSMORE,
Petitioner-Respondent,
and
MICHAEL DINSMORE,
Respondent-Appellant.
Deschutes County Circuit Court
19DR04489; A176616
Alicia N. Sykora, Judge.
Argued and submitted October 6, 2022.
Ruth Casby argued the cause for appellant. Also on the
briefs were Janet M. Schroer and Hart Wagner LLP.
Helen C. Tompkins argued the cause and filed the briefs
for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
170 Gott-Dinsmore and Dinsmore
HELLMAN, J.
Husband appeals from a general judgment dissolv-
ing the marriage and awarding support to wife. On appeal,
he raises two assignments of error relating to the amount of
spousal support that the trial court ordered. He also appeals
from the supplemental judgment that awarded wife attorney
fees. We conclude that the trial court did not impermissibly
rely on evidence of husband’s past income and did not abuse
its discretion when it determined that husband’s income was
$230,000 for the purposes of calculating spousal support. We
further conclude that the trial court did not abuse its dis-
cretion when it set compensatory spousal support at $1,500
per month for six years. Husband’s arguments against the
attorney fee award in the supplemental judgment are based
on his position that the trial court erred in its spousal sup-
port order. Because we affirm the general judgment, we do
not disturb the trial court’s award of attorney fees to wife.
Accordingly, we affirm.
We recount some background facts here for con-
text and discuss additional relevant facts in our analysis
of each assignment of error. The parties were married in
1995. When they met, husband was working at McDonalds
and later worked as a cab driver. Wife earned her bachelor’s
degree, but then worked as a janitor and auto detailer to
support husband while he obtained a bachelor’s degree in
English and master’s degree in teaching English. Husband
taught English for about a year before switching careers to
work in the tech industry. From 2000 to 2005, wife worked
in retail and at a car rental company. In 2005, by mutual
decision, wife stopped working to care for their first child
and did not work outside the home for the remainder of the
parties’ marriage.
In 2006, husband began maintaining and build-
ing data centers for companies like Google, Facebook, and
Salesforce, switching jobs multiple times and progressively
earning higher pay. Between 2009 and 2013, husband made
between $90,000 and $200,000 per year, and between 2014
and 2019 he made more than $199,000 per year. Every year
between 2013 and the time of trial, husband has received
Cite as 330 Or App 169 (2024) 171
a bonus or stock compensation worth more than $195,000.
The parties separated in 2018.
Wife filed for dissolution of marriage in March 2019.
The parties agreed on custody, parenting time, and the divi-
sion of marital assets and debts, but disagreed on the issue
of spousal support. Husband was laid off from Salesforce on
October 31, 2020. His gross income that year, which included
$67,378 in severance pay, was $348,928.
The court held a trial in January 2021 to resolve the
spousal support issue. Both husband and wife testified, as
did a certified public accountant. The parties also submitted
documentary evidence in support of their positions. At that
time of trial, wife was studying for her master’s degree in
social work. She anticipated that when she graduated she
could obtain a position at a starting salary of $50,000.
In a 21-page written order, the trial court made
detailed factual findings and applied those findings to the
factors in ORS 107.105(1). The trial court then determined
that a just and equitable amount of spousal support to wife
was as follows: $1,500 monthly transitional support for three
years, $1,500 monthly compensatory support for six years,
and $2,000 monthly maintenance support indefinitely. In
the order, the trial court specifically found that husband’s
testimony lacked credibility. This appeal followed.
Spousal support/earning capacity. In his first
assignment of error, husband argues that the trial court
erred when it determined that his earning capacity was
$230,000 for the purposes of spousal support. Specifically,
husband takes the position that the court misapplied our
case law by relying solely on evidence of his past income to
determine his present earning capacity.
We review a trial court’s determination of the
amount of spousal support for abuse of discretion. Colton
and Colton, 297 Or App 532, 542, 443 P3d 1160 (2019).1 In
reviewing that determination, we are bound by the trial
court’s findings of historical fact that are supported by any
evidence in the record, and we will disturb the trial court’s
1
Neither party seeks de novo review, nor is this an exceptional case in which
we would grant it. ORS 19.415(3)(b); ORAP 5.40(8)(c).
172 Gott-Dinsmore and Dinsmore
determination of what constitutes a “just and equitable”
amount only if the court “misapplied the statutory and equi-
table considerations required by ORS 107.105.” Berg and
Berg, 250 Or App 1, 2, 279 P3d 286 (2012). After a review of
the record, we conclude that the trial court did not imper-
missibly rely on evidence of husband’s past income and did
not abuse its discretion when it determined that husband’s
income was $230,000 for the purposes of calculating spousal
support.
“[I]n order for the court to make an award of sup-
port, there must be evidence of the obligor spouse’s future
earning potential and ability to pay.” Hendgen and Hendgen,
242 Or App 242, 250, 255 P3d 551 (2011). Spousal “support
cannot be determined in the absence of evidence of what
that earning capacity might be.” Id. Rather, the record must
contain “nonspeculative evidence of present earning capac-
ity[.]” Andersen and Andersen, 258 Or App 568, 584, 310 P3d
1171 (2013) (emphasis in original).
We have held that a trial court cannot rely solely on
a spouse’s past income when the record demonstrates that
there are external constraints on the spouse’s actual earn-
ing capacity. Id. at 584-85. In Andersen, we reversed the
spousal support award when the sole evidence of the spouse’s
earning capacity was past income, the spouse was presently
employed at a lower salary, and the record contained evidence
of external constraints on that salary, specifically, an indus-
try-wide downturn that diminished demand for the spouse’s
legal services. Id. at 584. In Waterman and Waterman, 158
Or App 267, 271, 974 P2d 256 (1999), we reversed a spousal
support award for similar reasons, because the record con-
tained evidence that higher paying jobs were unavailable
to the spouse. And in Hendgen, 242 Or App at 248, 250-
51, we reduced the amount of spousal support when the
spouse’s past higher income was based on significant sales
of property, the spouse was presently retired, and the record
lacked any evidence of the spouse’s current ability to earn a
higher salary than his retirement income. We also noted in
Hendgen that the trial court made no findings concerning
future income or earning capacity. Id. at 245.
Cite as 330 Or App 169 (2024) 173
Although Waterman, Andersen, and Hendgen limit
the use of past income in setting earning capacity for spou-
sal support, those cases do not stand for the proposition that
a court can never use historical income for that purpose.
Rather, “[i]n the absence of evidence of ‘uncontroverted cir-
cumstances’ constraining actual income, reliance on evi-
dence of the obligor’s work history, experience and skills, and
past income is not necessarily speculative and can support
a determination of earning capacity.” Cortese and Cortese,
260 Or App 291, 296-97, 317 P3d 340 (2013), rev den, 355 Or
317 (2014); see also Furlong and Furlong, 120 Or App 105,
108, 852 P2d 233 (1993) (“We have never held that a court
is precluded from forecasting a person’s earning capacity in
appropriate circumstances.”).
Here, the record contains evidence from which the
trial court could find that husband did not face the kinds of
“uncontroverted circumstances constraining actual income”
that would prohibit the trial court from relying on his past
income to set earning capacity at $230,000. See Cortese,
260 Or App at 296-97. Husband argues that the trial court
incorrectly characterized his statement that he could make
$230,000 a year as an admission, when in fact it was just a
“hypothetical and hopeful earning expectation.” We do not
need to decide whether husband’s testimony amounts to a
legal “admission.” Even without husband’s statement, the
record contained sufficient evidence of husband’s employ-
ment history, past income, knowledge, and skills for the
trial court to set husband’s earning capacity at $230,000.
Since 2009, husband has performed work that
requires a high level of specialized knowledge and skill,
including maintaining and building data centers for com-
panies like Google, Facebook, and Salesforce. His earn-
ings progressively grew and in his final year at Salesforce
he earned $348,928. The record contains no evidence of an
industry-wide downturn in the building and maintaining of
data centers, or of a lack of employment opportunities for
husband. Although husband’s specific job at Salesforce was
eliminated, he retained his significant work experience and
expertise in a specialized industry, and there was no evi-
dence that his skill set had become obsolete. Cf. Yocum and
174 Gott-Dinsmore and Dinsmore
Pockett, 328 Or App 613, 617, 537 P3d 979 (2023) (holding
that the evidence did not support the trial court’s determi-
nation that the spouse’s potential income exceeded his pres-
ent income when the evidence demonstrated that he had
not worked as a research scientist in over 10 years and had
looked for jobs in that field, but was unqualified because his
skills were out of date and he had no recent experience).
In addition, even though husband claimed that
parenting time obligations limited his employment oppor-
tunities to the Bend area, the record contained evidence to
the contrary. Specifically, husband had searched for employ-
ment in the Seattle area and had participated in a Bend-
centered parenting time schedule since 2019 without living
in Bend full time.
Contrary to husband’s arguments on appeal, the
record contains evidence from which the trial court could
determine that husband “had failed to make a meaningful
effort to obtain employment” and that he was deliberately not
working. Cortese, 260 Or App at 297 (noting that the spouse
had “applied for only two jobs in * * * several months” and
“provided little testimony about his job search that would
explain his efforts or his lack of success”). Husband’s own
job log listed only seven job recruitment contacts in the five
months between his notice of termination from Salesforce
and the time of trial, and at least three of those contacts
were initiated by a recruiter rather than by husband.
Although husband testified that he could make $80,000
repairing computers and that he could work on the Best Buy
Geek Squad, he was not working there at the time of trial
and, based on the evidence that he presented, the trial court
could have found that he had rejected a job that would have
paid him $150,000 a year. Apart from his testimony, which
the trial court found lacked credibility, husband presented
no evidence that he sought different jobs within Salesforce
after learning that his position would be eliminated, or that
he took advantage of the job placement services that the
company offered.
In sum, without evidence of “ ‘uncontroverted cir-
cumstances’ constraining income” that prevent a trial court
from relying on past income, the evidence of husband’s “work
Cite as 330 Or App 169 (2024) 175
history, experience and skills, and past income” supported a
nonspeculative determination of his $230,000 earning capac-
ity. Cortese, 260 Or App at 296. The trial court did not abuse
its discretion in the amount of spousal support that it imposed.
Compensatory support. In husband’s second assign-
ment of error, he asserts that the trial court’s award of com-
pensatory support in the amount of $1,500 a month for six
years was “excessive” and not just and equitable considering
the property division and child support provisions of the dis-
solution judgment. Husband makes two specific arguments
in support of this assignment of error. First, he argues that
wife’s work to support them during the time he received his
undergraduate and master’s degrees is not statutorily sig-
nificant because those degrees were in English, but his cur-
rent career is in the tech industry. Second, he argues that
wife’s contribution was already accounted for in the prop-
erty division because the marital estate benefitted from the
parties’ divided responsibilities during the time they were
married until they separated in 2018. Accordingly, husband
asserts that wife was “fully compensated” for her contribu-
tions to the marital estate in the property division and the
“favorable” child support award.
We review a trial court’s decision on the “amount
of spousal support [that] is just and equitable for abuse of
discretion.” Colton, 297 Or App at 542 (internal quotation
marks omitted). We will modify an award only if we find
that the trial court’s determination “falls outside the range
of reasonableness by a significant enough margin.” Potts
and Potts, 217 Or App 581, 587, 176 P3d 1282 (2008).
The trial court did not abuse its discretion in cred-
iting wife’s work to support husband’s education in the com-
pensatory support determination. Evidence in the record
supports the trial court’s findings that husband was working
at McDonalds when he met wife, that even with her college
degree she worked as a janitor and auto detailer to allow
him to obtain both an undergraduate and master’s degree,
and that husband used his skills from that education in his
current profession. As the trial court noted, husband listed
both his master’s degree and specific skills he acquired from
it on the resume that he used to obtain multiple positions
176 Gott-Dinsmore and Dinsmore
with six-figure salaries. Although husband views the evi-
dence differently, much of his argument is based on his own
testimony, which the trial court found not credible, and we
do not reweigh evidence on appeal.
Similarly, the trial court did not abuse its discre-
tion in awarding compensatory support in addition to the
property division and child support. The trial court cor-
rectly determined that a court can award compensatory
support even when there is an equal division of marital
assets. Cullen and Cullen, 223 Or App 183, 191, 194 P3d 866
(2008).2 The trial court then explicitly relied on the factors
in ORS 107.105(1)(d)(B) to set the amount of compensatory
support at $1,500 per month for six years. Such an approach
was well within the range of legally permissible discretion.
Husband relies on Hendgen to argue that the prop-
erty division in this case accomplished the purpose of com-
pensatory support, but Hendgen does not support husband’s
argument. Hendgen involved an award of maintenance
support, which serves an entirely different purpose than
compensatory support. 242 Or App at 246; see Harris and
Harris, 349 Or 393, 416-17, 244 P3d 801 (2010) (explaining
that “each of the three categories of spousal support serves
a different function”). Moreover, even though we reduced the
maintenance support award in Hendgen, we did not hold that
an equal property division will always subsume the need for
spousal support, only that on the specific facts in that case,
it “largely” did. 242 Or App at 250. The facts in Hendgen
were materially different from those in this case, especially
in terms of the disparity in earning capacity between the
spouses. See id. at 246-47. Therefore, Hendgen does not lead
to a conclusion that the trial court’s decision in this case
was an abuse of discretion. As the trial court correctly rec-
ognized, the determination of a just and equitable support
award is highly fact-specific and will vary from case to case.
Having reviewed the record, we conclude that it sup-
ports the trial court’s factual findings, both those specifically
2
Indeed, in a case like this one, where the higher-earning spouse had decades
remaining on a “highly productive earning career,” the Supreme Court deter-
mined that compensatory support was appropriate even in a case where the other
spouse had received a “significant asset distribution.” Harris, 349 Or at 414-15.
Cite as 330 Or App 169 (2024) 177
tied to the statutory factors and the more general findings
that the court relied on in its just and equitable determina-
tion. With the facts as the trial court found them, compensa-
tory support in the amount of $1,500 per month for six years
was not “outside the range of reasonableness by a significant
enough margin so as not to be just and equitable in the total-
ity of the circumstances.” See Potts, 217 Or App at 587.
Because we affirm the general judgment, we do not
disturb the trial court’s award of attorney fees to wife.
Affirmed.